State of New Jersey v. Michael Ross Ii

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,v.MICHAEL ROSS II, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1640.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 8, 2012

Before Judges Axelrad, Sapp-Peterson and Ostrer.

In this criminal appeal, we consider again the appropriateness of juror substitution after the deliberating jury has announced a deadlock. See State v. Banks, 395 N.J. Super. 205 (App. Div.) (reversing conviction because alternate juror substituted after jury announced it was unable to reach a unanimous verdict), certif. denied, 192 N.J. 598 (2007). After hearing slightly over six days of testimony, the jury announced it was unable to reach a unanimous verdict on the fifth calendar day of deliberations. The court delivered a modified Czachor charge. See State v. Czachor, 82 N.J. 392 (1980). Then, near the end of the day, one juror reported she was too ill to continue to deliberate. The next morning, after the juror reported by telephone she was still ill, the court seated an alternate, and instructed the jury to start anew. On the fourth day of deliberations after the substitution, the jury found defendant guilty on all counts of the indictment.

As we did in Banks, supra, we hold it was error under the circumstances to substitute a juror after the jury announced it was deadlocked. The jury had proceeded too far to expect the newly seated juror to be a full and equal participant in deliberations. We therefore reverse and remand.

I.

An October 31, 2006 Middlesex County indictment charged that defendant, on October 30, 2003 in Woodbridge Township, committed the first degree murder of Alesky Bautin and Sergey Barbashov, N.J.S.A. 2C:11-3(a)(1),(2) (counts one and two). The indictment also charged second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and third degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count five).*fn1

The trial presented significant credibility issues for the jury. The State's theory was that defendant shot and killed Bautin and Barbashov after mistaking them for someone who had threatened him with a gun almost a month earlier, on October 1, 2003. The State established Bautin and Barbashov were killed while seated in a red 1999 Volkswagen Passat parked outside Building 12 of the Forest View apartment complex in Woodbridge.

Defendant had reported the gun threat to police on October 2, 2003. According to defendant, he believed the man was involved in the burglary of a friend's house. Defendant and several other individuals - including Jamil McKnight, Greg Wakefield and Sherrill Williams - pursued the man in three cars. The man drove a burgundy Ford Taurus or Mercury Sable that defendant had seen many times before in the neighborhood. The four cars ultimately came to a stop on Rahway Avenue, and the man exited, waving a gun at defendant and the others. In defendant's attempt to flee, he collided with another vehicle.

In tying defendant to the fatal shooting later that month, the State relied on the testimony of McKnight, who admitted he was present during the gun-waving incident. McKnight was visually impaired and testified he did not see the gun. However, he alleged that defendant identified the person who waved the gun as Mitchell Wright, who also lived in the Forest View complex.

With respect to the shooting weeks later, McKnight admitted he retrieved the gun used in the shooting, supplied the vehicle, was present during the shooting, disposed of the weapon, and witnessed Ross discard the spent shells. He testified that while he, defendant, Sherrill Williams, and Ron Huff were driving around the neighborhood on October 30, 2003, defendant said he spotted the individuals who had threatened him weeks earlier. McKnight testified that defendant insisted on returning to McKnight's house, so McKnight could retrieve a handgun that McKnight was keeping for him. Huff left the vehicle. Williams remained at McKnight's home. Defendant and McKnight drove back to the apartment complex, where defendant shot into a vehicle roughly three feet away.

McKnight stated he and defendant drove off; they discarded the gun in a hole in a hill; they then briefly visited a friend, Greg Wakefield. McKnight testified that, without consulting with defendant, McKnight retrieved the gun before dawn on October 31. He took it with him to work in New York City that day, stored it in his locker, and then took it to a person whom he knew from Queens, New York only by the first name of Dante. There, with Williams present in the house, he gave the gun to Dante to discard.

The defense attempted to discredit McKnight in several ways. McKnight had given three inconsistent sworn statements to police. In his first two statements, he withheld mention of Williams, who was present at the October 1 incident, as well as on October 30. He also withheld mention of his role in hiding and discarding the weapon. McKnight admitted that he and Williams had known each other for many years, dating back to when they lived in Jamaica, New York, and Williams was living at McKnight's house in Woodbridge. Williams had been involved in criminal activity, and McKnight feared that Williams would retaliate and harm him if McKnight implicated him in any way. The defense highlighted McKnight's personal exposure to prosecution, and the favorable resolution, in the form of admission to pre-trial intervention, he received in return for his cooperation. As we discuss in greater detail below, defendant suggested that McKnight and Williams, not himself, participated in shooting the victims. In cross-examination of one of the investigating police officers, defense counsel also elicited that Williams, who did not testify at trial, gave police a statement that McKnight -- as opposed to defendant -- owned the nine millimeter handgun.

The State also relied on the testimony of defendant's former girlfriend, Sharhi Roberts, who stated defendant admitted shortly after the shooting that he killed the two men, and then repeated his confession a year later, explaining he shot them by mistake. However, Roberts also testified that defendant later said that he "made it up" when he admitted to the shooting.

The defense elicited from Roberts that she provided her incriminating statement in return for dismissal of false alarm charges against her. After Roberts testified that her criminal defense attorney advised her to tell investigators what they wanted to hear, the State called the attorney, who denied so advising his client. However, the attorney did testify that his client received harsher treatment than was typical of a person charged with a false alarm offense in an effort to secure her cooperation, and he advised her that if she were not able to provide incriminating information about defendant, she should not waste the time giving a statement.

Huff testified that he was in the vehicle when defendant repeatedly said "red Jetta," and said defendant saw "the same people from Rahway Avenue," although Huff was unaware of what happened there. He testified that defendant asked McKnight "you still got that at your house," McKnight responded in the affirmative, and defendant said, "Let's go get it." After the vehicle stopped in front of a house, Huff left the vehicle because the conversation had "turned real negative." As he walked alone in the neighborhood, Huff was one of the first persons to come upon the victims after the shooting. He consoled one of the victims, left the scene as police approached, but was then stopped by a police officer nearby.

The defense highlighted that Huff, when police initially questioned him at the scene, and in a sworn statement two days later, disclosed nothing about being in the car with defendant or defendant's alleged statements. He admitted he did not mention his presence in the vehicle until a statement he gave in 2007. He did not claim defendant identified a red Jetta until a statement in 2008. The defense attempted to suggest Huff gave police statements in 2007 and 2008 to avoid exposure to prosecution himself. The defense also raised questions about Huff's credibility by highlighting Huff's claim that McKnight was the driver, when it was apparently undisputed that McKnight was not the driver, because of his poor eyesight.

Wakefield testified that after the shooting, defendant and McKnight dropped by his house. When he testified that defendant appeared calm and did not recall statements by defendant, the State confronted Wakefield with a sworn statement that when defendant appeared at his house shortly after the shooting, he appeared "jumpy," and defendant stated he was "popping off at Forest View." Wakefield understood "popping off" to mean shooting, but believed defendant was joking. The State also elicited that Wakefield asserted, in his prior statement, that he knew defendant owned a nine millimeter handgun. He also told investigators that defendant knew "the two individuals whom he shot were mistakenly shot" and that defendant intended to shoot "Mitch and Bruce." Wakefield also told investigators that defendant asked him to pick up shell casings near the Forest View complex and Wakefield refused.

Although confronted with his prior statements, Wakefield attempted to disavow his prior statements to police. He asserted that police questioned him at length, subjected him to a polygraph, and continued until "they got the one they wanted to hear." The State elicited that Wakefield gave two statements in April 2005, while he faced charges for terroristic threats, resisting arrest, and unlawful possession of a weapon. He entered a plea to the terroristic threats and resisting arrest charges in June 2005, and to the weapons charges in February 2006; was sentenced to prison; and had recently been discharged from parole. As part of his plea agreement, he agreed to give truthful testimony in defendant's case.

On cross-examination, he elaborated that he had been questioned for many hours and was subject to mental "torture" before giving his statements, and felt threatened. He testified that he told investigators and the assistant prosecutor he made up the allegations that defendant stated he was "popping off," and defendant asked him to pick up shells. He also stated that he believed he could have been charged with the homicide himself if he did not cooperate. Defense also elicited that in one of Wakefield's statements, he asserted that defendant appeared at his house alone the night of October 30. Wakefield also confirmed that he was present at the incident on October 1, and that he observed the man with a gun was driving a red Taurus. He also testified that he knew Mitchell Wright drove an old Jetta.

Defendant testified on his own behalf. Defense counsel preemptively elicited that defendant had been convicted in 2006 of a fourth degree crime for which he was sentenced to eighteen months' incarceration without parole.*fn2 He described the October 1 incident. Defendant stated the Taurus or Sable drove by while he and a group of others, including Wakefield, McKnight, and Williams were sitting in front of Wakefield's house, talking. They recognized the people as having burglarized Wakefield's house. He said McKnight and Williams pursued in one car; he pursued in his sister's car with Wakefield; and others pursued in a third car. He denied the man with the gun was Mitchell Wright, but testified that he waved the gun at both his and McKnight's cars.

Regarding the night of the murders, defendant testified he was driving with McKnight, Williams and Huff and they saw a Ford Taurus leaving the Forest View complex. According to defendant, he was driving and McKnight asked to go back to his home. Huff got out of the car before they arrived at McKnight's house. When they arrived, McKnight got out, while defendant and Williams remained in the car. McKnight returned with an item wrapped in a bandana, which defendant believed was a gun. Defendant drove to the home of his friend LaToya McPhatter and got out of the car. Williams got into the driver's seat and drove away with McKnight. LaToya was not at home, so he stayed only briefly and then went to Wakefield's house, where McKnight ultimately arrived. Defendant denied shooting Bautin and Barbashov and said that he would not confuse a Volkswagen Jetta with a Sable or Taurus.

On cross-examination, the State elicited statements defendant made, while incarcerated, in a telephone conversation with his father that apparently was recorded without defendant's knowledge. Defendant told his father he was not in Middlesex County the night of the homicides, despite his own testimony that he was. He also acknowledged to his father that Mitchell Wright was involved in what his father called "the . . . shooting at you[.]"

The defense presented one alibi witness, Chaney McPhatter, who was thirteen years old in October 2003. Defendant was friends with her older sister and was a frequent visitor at their home. She testified that she remembered October 30, 2003, because it was mischief night and she was grounded for not cleaning her room. When asked if defendant was at her house that night, she responded "Well, I think I remember seeing him. I don't remember speaking to him." On cross-examination, the State established that in a prior statement, McPhatter told investigators she did not recall defendant visiting her house that night. On redirect, defense counsel established that she never signed ...

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